Digital Fairness Act: do we need new laws or simply better enforcement?

Executive summary
Europe already boasts one of the world’s most comprehensive consumer protection frameworks, applying horizontally across all consumer-facing businesses. A new Digital Fairness Act would merely duplicate existing regulations, driven by the mistaken belief that ‘tech companies’ require special regulation.

EU consumer law is principles based and designed to adapt to new challenges without constant legislative revision. Manipulative design, false urgency, addictive features, misleading advertising, pricing tricks, influencer marketing and subscription traps are all explicitly addressed by existing consumer, data protection and digital legislation. Where automation is involved, safeguards on transparency and human oversight are already guaranteed. This includes the Unfair Commercial Practices Directive (UCPD), the Consumer Rights Directive (CRD), the Unfair Contract Terms Directive (UCTD), the Digital Services Act (DSA) and the General Data Protection Regulation (GDPR).

Some of the new concepts floated in the European Commission’s public consultation – such as a blanket ‘fairness by design’ duty, redefining the ‘average consumer’ – would create vague standards that upend settled principles of EU law. Proposals like reversing the burden of proof would encourage defensive over-compliance; similarly, mandatory age checks would be counterproductive at the very moment when DSA rules on age-appropriate design are just starting to be implemented.

Simplification should be a central ambition, both in respect of the Digital Fairness Act’s approach to existing law and in any new proposals.  

There is no absence of rules: the problem lies in uneven enforcement. Rather than producing duplicative requirements that only burden compliant businesses, the EU should focus on strengthening enforcement of existing laws.